Elberta Nicole Jackson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Statement of the Case

[1] Elberta Nicole Jackson (“Jackson”) appeals, following an open guilty plea, the sentence imposed in four separate causes. Specifically, she appeals her sentences imposed for her two Level 4 felony unlawful possession of a firearm by a serious violent felon convictions,¹ her Level 6 felony resisting law enforcement conviction,² her enhancement for being an habitual offender,³ and the imposition of her previously suspended sentence upon her probation revocation. Jackson argues that: (1) the trial court abused its discretion when it failed to find certain mitigating circumstances; and (2) her sentence is inappropriate. Concluding that the trial court did not abuse its discretion and that Jackson's sentence is not inappropriate, we affirm the trial court's judgment.

[2] We affirm.

Issues

1. Whether the trial court abused its discretion when sentencing Jackson.

2. Whether Jackson's sentence is inappropriate.

Facts

[3] In May 2019, the trial court sentenced Jackson to four years, all of which was suspended to probation, for her Level 5 felony battery causing bodily injury to a public safety officer conviction in Cause No. 27D01-1807-F4-39 (“Cause F4-39”).⁴ In May 2021, the State charged Jackson with Level 4 felony unlawful possession of a firearm by a serious violent felon in Cause No. 27D01-2105-F4-20 (“Cause F4-20”). Thereafter, Jackson posted bond in Cause F4-20. The probation department also filed a petition to revoke Jackson's probation in Cause F4-39.

[4] In October 2022, the State charged Jackson with Level 6 felony resisting law enforcement in Cause No. 27D01-2210-F6-660 (“Cause F6-660”). In August 2023, the State charged Jackson with Level 4 felony unlawful possession of a firearm by a serious violent felon in Cause No. 27D01-2308-F4-30 (“Cause F4-30”).⁵

[5] In February 2024, Jackson, pro se, pleaded guilty, without the benefit of a plea agreement, to multiple charges in her pending cases. Specifically, Jackson pleaded guilty to Level 4 felony unlawful possession of a firearm by a serious violent felon in Cause F4-20, Level 6 felony resisting law enforcement in Cause F6-660, and Level 6 felony unlawful possession of a firearm by a serious violent felon in Cause F4-30. Jackson also admitted to being an habitual offender in Cause F4-30 and admitted that she had violated the terms of her probation in Cause F4-39.

[6] In March 2024, the trial court held a sentencing hearing. At the hearing, Jackson's adult daughter testified that she was “by [her]self[,]” that she was currently pregnant, that Jackson was the only person she could rely on for help and that Jackson “could calm [her] down when [she was] ready to go off[.]” (Tr. 53). Additionally, Jackson testified that her possession of firearms was “strictly for the protection of [her]self” and her “grand kids and babies.” (Tr. 59). Jackson further testified that the firearms that she possessed were “not dirty, used in a crime[,] ․ [or] stolen.” (Tr. 59). Jackson, who was proceeding pro se at sentencing, did not specifically argue that the trial court should find any mitigating circumstances.

[7] The pre-sentence investigation report (“PSI”) revealed that thirty-nine-year-old Jackson had a lengthy criminal history. This history included six felony convictions and nineteen misdemeanor convictions. The PSI also noted that Jackson had had her probation revoked eleven times. At the conclusion of the sentencing hearing, the trial court found the following aggravating circumstances: (1) Jackson was on probation when she committed the offenses in Cause F4-30, Cause F6-660, and Cause F4-20; (2) Jackson has an extensive criminal history spanning over twenty years that includes violent crimes; and (3) Jackson was out on bond when she committed the offenses in Cause F6-660 and Cause F4-30. The trial court found the following mitigating circumstances: (1) Jackson suffers from PTSD; (2) Jackson pleaded guilty; and (3) “there are substantial grounds tending to excuse the handgun crimes[,] but they do not establish a defense.” (Tr. 70).

[8] The trial court sentenced Jackson to the advisory term of six (6) years for her Level 4 felony unlawful possession of a firearm by a serious violent felon conviction in Cause F4-20, the advisory term of one (1) year for her Level 6 felony resisting law enforcement conviction in Cause F6-660, the advisory term of six (6) years for her Level 4 felony unlawful possession of a firearm by a serious violent felon conviction with an eight (8) year enhancement for her habitual offender adjudication in Cause F4-30. In Cause F4-39, the trial court ordered Jackson to serve one (1) year of her previously suspended sentence for her probation violation. The trial court ordered all of Jackson's sentences to be served consecutively to each other because Jackson had been out on bond in F4-20 when she had committed the offenses in F6-660 and F4-30. The trial court ordered Jackson to serve her aggregate sentence in the Department of Correction (“the DOC”).

[9] Jackson now appeals.

Decision

[10] Jackson argues that: (1) the trial court abused its discretion when it failed to find certain mitigating circumstances; and (2) her sentence is inappropriate. We address each of her arguments in turn.

1. Sentencing - Mitigating Circumstances

[11] Jackson first argues that the trial court abused its discretion when it failed to find certain mitigating circumstances. We disagree.

[12] Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). So long as the sentence is within the statutory range, it is subject to review only for an abuse of discretion. Id. An abuse of discretion will be found where the decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial court may abuse its discretion in several ways, including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law. Id. at 490-91.

[13] Jackson argues that the trial court abused its discretion in its determination of mitigating circumstances. Specifically, Jackson contends that the trial court abused its discretion by failing to find as mitigating circumstances that her incarceration was an undue hardship to her family and that there was no danger or threat of danger from her possession of firearms.

[14] The determination of mitigating circumstances lies within the trial court's discretion. Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh'g denied. A trial court is not obligated to accept a defendant's claim as to what constitutes a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). In fact, a claim that the trial court failed to find a mitigating circumstance requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.

[15] Turning to Jackson's first challenged mitigator, she argues that the trial court failed to find “a hardship to her family” as a mitigating circumstance. (Jackson's Br. 19). However, “[m]any persons convicted of crimes have dependents and, absent special circumstances showing that the hardship to them is ‘undue,’ a trial court does not abuse its discretion by not finding this to be a mitigating factor.” Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009), trans. denied. Here, Jackson's adult daughter testified that she was alone, was pregnant, and that Jackson could calm her down when she was “ready to go off[.]” (Tr. 53). Neither Jackson nor her adult daughter testified that Jackson provided financial assistance to her adult daughter. Further, Jackson, who was proceeding pro se at sentencing, did not argue that the undue hardship to her dependents was a mitigating circumstance. Jackson has failed to show the special circumstances required for an undue hardship to her dependents. Accordingly, the trial court did not abuse its discretion by declining to find undue hardship as a mitigating circumstance. See, e.g., id. (explaining that there is no requirement that a trial court find a defendant's incarceration would result in undue hardship to her dependents).

[16] Jackson also argues that the trial court failed to find as a mitigating circumstance that “there was no[ ] danger or a threat of danger from the firearms.” (Jackson's Br. 19). Jackson notes that her firearm-related convictions were for possession and that there were no charges related to the firearms being “stolen or used.” (Jackson's Br. 19). However, the trial court found as a mitigating circumstance that “there are substantial grounds tending to excuse the handgun crimes” but that they did “not establish a defense.” (Tr. 70). Thus, the trial court did find a mitigating circumstance related to Jackson's firearm possession. Accordingly, we find no error here.⁶

2. Inappropriate Sentence

[17] Jackson also argues that her aggregate sentence is inappropriate.  ⁷ We may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review “should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B) analysis is not to determine whether another sentence is more appropriate but rather whether the sentence imposed is inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted), reh'g denied.

[18] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence “is the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081. Here, Jackson was convicted of two Level 4 felonies and a Level 6 felony. Additionally, she was adjudicated to be an habitual offender. A person who commits a Level 4 felony “shall be imprisoned for a fixed term between two (2) and twelve (12) years, with the advisory sentence being six (6) years.” I.C. § 35-50-2-5.5. A person who commits a Level 6 felony “shall be imprisoned for a fixed term of between six (6) months and two and one-half (21/212) years, with the advisory sentence being one (1) year.” I.C. § 35-50-2-7(b). A person who is found to be an habitual offender after being convicted of a Level 4 felony shall be sentenced to an additional fixed term that is between “eight (8) years and twenty (20) years[.]” I.C. § 35-50-2-8(i).

[19] Here, the trial court sentenced Jackson to the advisory sentence for all of her convictions. Specifically, the trial court sentenced her to six (6) years for her Level 4 felony unlawful possession of a firearm by a serious violent felon conviction in Cause F4-20, one (1) year for her Level 6 felony resisting law enforcement conviction in Cause F6-660, and six (6) years for her Level 4 felony unlawful possession of a firearm by a serious violent felon conviction with an enhancement of eight (8) years for her habitual offender adjudication in Cause F4-30. The trial court ordered the sentences in these causes to be served consecutively, which is well below the maximum sentence allowed by the statutes.

[20] Turning first to the nature of the offenses, we note that while Jackson was on probation, she twice unlawfully possessed a firearm while being a serious violent felon and also resisted law enforcement by fleeing from them. When examining her character, we note that Jackson's criminal history is extensive. Jackson has six prior felony convictions, which includes felony convictions for battery causing serious bodily injury, armed robbery, and resisting law enforcement. Further, Jackson has nineteen prior misdemeanor convictions, which includes two misdemeanor convictions for resisting law enforcement. Additionally, Jackson had her probation revoked eleven times and was out on bond when she committed the offenses in Cause F6-660 and F4-30. Jackson has clearly shown that attempts to rehabilitate her have failed.

[21] Jackson has not persuaded this Court that her aggregate sentence for her two convictions for Level 4 felony unlawful possession of a firearm by a serious violent felon, her conviction for Level 6 felony resisting law enforcement, and her habitual offender enhancement is inappropriate. Therefore, we affirm the sentence imposed by the trial court.

[22] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-47-4-5.

2.   I.C. § 35-44.1-3-1.

3.   I.C. § 35-50-2-8.

4.   Jackson, in Cause F4-39, was also sentenced for her Level 6 felony battery against a public safety official and Class A misdemeanor resisting law enforcement convictions. The trial court ordered these sentences to be served concurrently with the Level 5 felony conviction.

5.   The State also charged Jackson with eleven other charges in Cause F4-30. The State dismissed all eleven of these charges, and they are not relevant to this appeal.

6.   Jackson also argues that the trial court abused its discretion when it ordered her to serve her sentences in Cause F6-660 and Cause F4-30 consecutively. However, our review of the record reveals that Jackson had been out on bond or on her own recognizance in Cause F6-660 when she had committed the offense in Cause F4-30. Therefore, the trial court was required to order the sentences in F6-660 and F4-30 to be served consecutively. See I.C. § 35-50-1-2(e)(2).

7.   When raising her inappropriate sentencing argument, Jackson includes a request to have this Court engage in a Rule 7(B) analysis and review the imposition of one-year of her previously suspended sentence as a result of her probation revocation in Cause F4-39. However, the imposition of a previously suspended sentence as a result of a probation revocation is not subject to a Rule 7(B) analysis. See Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007); Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied. Instead, a probation revocation sentence is reviewed for an abuse of discretion. See Sanders, 825 N.E.2d at 956. Jackson makes no such argument on appeal. Therefore, we will not review the imposition of her probation revocation sentence.

Pyle, Judge.

Judges Weissmann and Felix concur. Weissmann, J., and Felix, J., concur.